Saturday, November 8, 2014

The Vanishing Point

When visiting the National Archives, as I was standing in line to view the great documents of the United States I noticed people leaning over very close to the glass. Is it that bad? I thought. As the line moved I finally got my turn to peer at the Bill of Rights. As I found myself nose to glass I understood.

The documents are fading into oblivion. Congress....shall make no law....closer to the glass I go...regarding what exactly?

Walking away that day I could not help but think that the physical reality of the disappearing Bill of Rights mirrored what was happening in the country. What once was so clear and unchanging was fast becoming faint and distant. How can this be? Let's step back a few years and look at an example.

In 2005, the Supreme Court ruled in Kelo v City of New London that a government could take personal property and give it to another private owner to further economic development. This was based on the Fifth Amendment that says:

"No person shall [have] private property...taken for public use, without just compensation."

This expansion of the meaning of "public use" to a taking from a private holder and giving to another private holder would have a result as Justice O'Connor said,

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

Many were outraged and pressed their representatives to pass laws to prevent this from happening. I am happy to report that nine years later most states enacted laws that severely inhibited the takings allowed by the Kelo decision.

All's well that ends well--or is it?

What if a majority had NOT been outraged and no state laws were subsequently passed? How would politically weak minorities withstand abuse? The answer is they would not.

Our system of governance was designed for the majority to rule. However, to protect minorities from abuse or a "tyranny of the majority" a Bill of Rights was created. We acknowledged that certain rights should not be trampled on by the simple will of a majority. As Madison said,

"A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party."-Federalist #10
When the Supreme Court is derelict in its duty as it was in Kelo then there no longer remains constitutional protection. The only protection is a majority passing a law reinstating the lost right.

A minority can only gain protection if the majority allows thus turning the purpose of a Bill of Rights on its head.

This same effect has been seen with the First Amendment's religious freedom. When the Court weakened religious freedom as it did in 1990 in Employment Division v Smith (removing the highest level of protection called 'strict scrutiny') the only remedy was the majority passing a law (Religious Freedom Restoration Act) to reinvigorate that right.

Unfortunately, that leaves those with strong religious convictions, including committed Christians at the mercy of the majority. Make no mistake--Christians who are serious about their faith, and not simply cultural or familial Christians, are in a minority. Though about 75% of Americans claim the name of Christ the number who are committed are much less. Consider this information from the Pew Forum on religion:

"Most Americans also have a non-dogmatic approach when it comes to interpreting the tenets of their own religion. For instance, more than two-thirds of adults affiliated with a religious tradition agree that there is more than one true way to interpret the teachings of their faith, a pattern that occurs in nearly all traditions. "

Also consider a recent extensive Ligonier poll across America:

"This survey reveals theological confusion, as well as a blatant attitude of rejecting what God has revealed of Himself and His will. It also reveals a significant amount of theological ignorance."

All this and more led the Colson Center to recently proclaim:

"It’s time we recognized we are no longer the “moral majority” and embrace our identity as the 'missional minority.' "

If a majority were to appear in opposition to a sincerely held religious belief  the Bill of Rights would sadly provide limited protection. Only if the majority were to choose to grant an exemption would protection likely be granted.

A mere 11 years ago in 2003 a number of states had laws banning sodomy. That was overturned that year in a case called Lawrence v Texas. Justice Scalia warned that state laws against same-sex marriage would not prove sustainable as a result of that decision but Justice O'Connor disagreed saying that laws limiting marriage to heterosexual couples would pass constitutional muster.

Oh how quickly things can change!

Scalia is proved prescient as we stand on the cusp of the Courts mandating gay marriage to all 50 states. With marriage laws being pervasive in our system if this occurs a host of legal attacks will happen against those in the minority who are unbending in their convictions. Even now we have witnessed the beginning of these assaults.

In 2013 in Elane Photography v. Willock a photographer who declined to photograph a gay marriage was fined $6,637.94. One of the justices on the New Mexico Supreme Court said "the Huguenins 'now are compelled by law to compromise the very religious beliefs that inspire their lives,' adding “it is the price of citizenship.” On April 7, 2014 the Supreme Court refused to hear the case thus letting the judgement stand.

The gas, temperature and humidity controlled enclosure around the Bill of Rights cannot erase the damage already done nor completely stop the effects of time. It is slowly, inexorably vanishing.

Are our rights also approaching the vanishing point?


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